The next question is, how are laws made? According to the Department of Justice, laws are rules made by government. Once again, I think everyone agrees. However, laws have not always originated through this process. In fact, historically speaking, this is a recent development. Think of laws made by the State (government) as being ‘top-down law-making’, or ‘authoritarian law’. Think of laws made by the people themselves as being ‘bottom-up law-making’, or ‘customary law’ (law established in recognition of evolving customs). It will be helpful to review a few historical examples of customary law, in order to understand the theory underlying its development. To be clear, the purpose of this review is not to recommend the adoption of any particular customary legal system as it once existed – all systems evolve over time. Rather, our objective is to reveal the different incentives inherent in the development and enforcement of customary law versus authoritarian law. Hence, to what extent do these opposing incentives explain the failure of many authoritarian law systems today?

Historical evidence suggests when people make custom-based laws they are more highly incentivized to abide by the laws, because these are norms to which they are already accustomed. Under customary law, when an offence was committed, the priority was to guarantee victim restitution – the offender must compensate the victim directly! The likelihood of appropriate compensation incentivizes the victim to report the offence and pursue prosecution, thus resulting in a high rate of crime resolution. Bruce Benson explains that customary law

is recognized, not because it is backed by the power of some strong individual or institution, but because each individual recognizes the benefits of behaving in accordance with other individuals’ expectations, given that others also behave as he expects.

Reciprocities are the basic source both of the recognition of duty to obey law and of law enforcement in a customary law system.

Because the source of recognition of customary law is reciprocity, private property rights and the rights of individuals are likely to constitute the most important primary rules of conduct in such legal systems. After all, voluntary recognition of laws and participation in their enforcement is likely to arise only when substantial benefits from doing so can be internalized by each individual. [1]

Prior to the Norman conquest, when the state did not exist and kings had limited powers, Anglo-Saxons lived under customary law.[2] They formed groups called hundreds, each one of which “was a clearly recognized legal institution.”[3] Membership in a hundred was purely voluntary, but there were strong incentives to join. Each hundred consisted of about one hundred individuals or households. The duties, benefits, and other features of membership were:

1) When someone inflicted harm on another person or the property (theft) of another person, all other members of the victim’s hundred were obligated to assist in the pursuit and prosecution of the accused. Note the reciprocal benefit. I will help you today because tomorrow I know you will help me, if required. A member who did not honour his obligations could expect to be expelled from the hundred, and his tainted reputation may prevent him from being accepted into another hundred. He becomes an outcast, lacking the benefits of a protection association. Loyalty means everything.

2) Punishment of the accused consisted of restitution paid to the victim, not imprisonment. The hundred also provided surety protection. If the accused could not afford the payment, the other members of his hundred would pay, with the expectation of repayment at a later date, failing which he may be expelled from the hundred, and perhaps be declared an outlaw. An alternate arrangement could involve slavery as a way for the accused to pay his debt.

3) If the victim and the accused could not agree on restitution, the matter was referred to a court, where arbitration proceedings would commence, but the resulting decisions were not binding. Benson notes that:

Anglo-Saxon laws were very concerned with protection of individuals and their property. In particular, offences against individuals are minutely provided for by the laws which delineate the economic payment appropriate for homicide, various kinds of wounds, rape, and indecent assaults. Similarly, theft was extensively treated in the codes.[4]

“Refusal to submit to arbitration would result in a legal right for the accuser to take the life of the accused.”[5] “Likewise, refusing to accept the monetary fine put the accuser outside the law.”[6] The accuser would be expelled from the hundred. “Refusal by either party to yield to the court’s decision, thus, led to outlawry and the potential of a blood-feud.”[7] Benson writes:

In all likelihood, however, given the incentives arising in customary legal systems and the resulting institutions of primitive law, the blood-feud was a valid recourse only after an attempt had been made to go to trial, long before kings became active in law. In this way, the potential for such violence was used to force compliance with the monetary sanction set forth by the courts.[8]

As with primitive law in general, the threat of violence was used to create incentives that could lead to a peaceful settlement. In addition, an outlaw was ostracized by the society in general and physical retribution became the responsibility of the entire community. The threat of social ostracism would seem to have been quite severe, providing very strong incentives to submit to and abide by the rulings of arbitration.[9]

COSTS AND INCENTIVES

As we go about our daily lives, most of the things we do are an outcome of our individual assessments of costs and incentives. Quite often, costs and incentives are expressed in monetary terms, such as having to decide between buying a new car for $27,000 or a used car for $9,000. The used car is obviously cheaper, but will it require costly repairs? What if the new car is a lemon? If you have done your research and are trying to save money, you may be incentivized to buy the used car. You decide it will cost you less.

Costs and incentives need not have a monetary component. My daughter is relaxing pool-side on a warm sunny day. I ask if she wants to come to the hardware store with me. She weighs the ‘cost’ of giving up the warm sun for an hour, and politely declines. I mention that I was thinking of stopping for ice cream on the way home. She becomes incentivized to join me. The cost of giving up the sun for an hour is lower than the cost of giving up a banana split. There is a cost for everything we do. For my daughter, the cost of the banana split is ‘one hour in the sun’. It was an easy decision for her, but there is always a cost.

Let’s review the cost/incentive structure of the hundred for the typical Anglo-Saxon. The incentive to join was based on the expectation of benefits in a time of need. The cost of not joining was the sacrificing of these benefits. The cost of joining was the requirement to aid other members in their time of need. Benson wrote:

. . . incentives must be largely positive when customary law prevails. Individuals must expect to gain as much or more than the costs they bear from voluntary involvement in the legal system. Protection of personal property and individual rights is a very attractive benefit.[10]

An individual who was not bonded by such a group was effectively an outcast, forced to be self-sufficient, so individuals had strong incentives to join a group. Because others in the group provided insurance (credit) for all members, however, they would not accept or keep someone who was not of good character. Consequently, members of a surety organization could disclaim someone who committed an egregious wrong,[11] providing strong incentives to abide by the law.

This healthy system tended to reduce or prevent the introduction into any society of anyone who did not have credentials transferred from a previous peaceful participation in a surety association. . . . Thus, social relations were maintained only with people who shared surety protection.[12]

We see in Anglo-Saxon customary law that its legal institutions – hundreds – were highly incentivized to resolve all offences. This is because each member of the legal institution was highly incentivized to assist victims in pursuit and prosecution. The incentive came from knowing “I could be the next victim, in which case I will need help.” Everyone had skin in the game. “These voluntary groups were clearly designed as cooperative protection and law enforcement associations.”[13] The cost of law enforcement – I must provide aid to other members when needed – was borne directly by each member of a hundred. Likewise, the benefit of law enforcement – I receive aid from other members when needed – was realized directly by each member. In other words, each of them internalizes the benefit AND the cost, thus creating an incentive to enforce the laws.

Today, in contrast, because bureaucrats responsible for enforcement of authoritarian law do not operate under a system of reciprocity, but rather a system of coercion, the benefits they acquire tend to be perverse. They do not directly bear the costs of enforcement, which are borne by individuals external to the bureaucracies – the taxpayers. The State decides how much you must pay for protection and justice, and also decides how much protection and justice to provide. In other words, the bureaucracy internalizes the benefit BUT NOT the cost, thus creating a disincentive to enforce the laws. The result is rising bureaucratic budgets, and declining levels of protection and justice. We will explore this in more detail in Part 8.

THE KING WANTS A PIECE OF THE ACTION

Benson observes that “once kingship evolved, there were actually three kinds of fines”[14]:

The fines were called wer, bot and wite. The wer was a price set upon a man according to his rank in life. If he was killed the wer was to be paid to his relations. If he was convicted of theft he had in some cases to pay the amount of his wer to his lord, or the king. If he was outlawed his sureties (borhs) might have to pay his wer.

Bot was compensation to a person injured by a crime. It might be either a fixed rate (angild), or at the market price of the stolen goods (ceaf–gild).

Wite was a fine paid to the king or other lord in respect of an offence.[15]

“This institutionalization of a king’s role in the justice process, and in particular a payment to the king for performing his role (wite), was one of the first steps in what would soon be a rapid extension of the king’s role in law.”[16] Benson continues:

. . . the reason for the development of the institution of kingship was not a need for establishment of law or maintenance of internal order.[17] . . . Anglo-Saxon kings saw the justice process as a source of revenue, and violations of certain laws began to be referred to as violations of the “king’s peace.”[18] Well before the Norman conquest, outlawry began to involve not only liability to be killed with impunity but “forfeiture of goods to the king.”[19]

The codes of the later kings indicate that the attractiveness of such revenues was apparently quite strong. . . . The stage was being set for the king to take over many aspects of law production and enforcement.

The concept of the “king’s peace” traces directly to Anglo-Saxon law in the sense that every freeman’s house had a “peace”; if it was broken, the violator had to pay. Initially, the king’s peace simply referred to the peace of the king’s house, but as royal power expanded, the king declared that his peace extended to other places. First it was applied to places where the king travelled, then to churches, monasteries, highways, and bridges.[20] Eventually, it would be “possible for royal officers such as sheriffs to proclaim the king’s peace wherever suitable. Even included were festivals and special occasions of the year such as Christmas, Lent, Easter, and Whitsuntide.”[21]

Violations of the king’s peace required payment to the king. The expansion in places and times protected by the king’s peace meant greater potential for revenue. Kings also gradually added offences against others that required payment of wite to the king. As revenues grew from such operations, the king could “buy” additional support for such arrangements by granting the right to parts of those revenues to others (e.g. earls and sheriffs). The populace did not always accept these changes gracefully, because they meant that the true victim of an offence claimed as a crime against the king received little or no restitution.[22]

Thus began the evolution from ‘victim justice’ to ‘criminal punishment’. Victim justice requires an offender to compensate his victim. Criminal punishment requires taxpayers to provide financial support for police, courts, prisons, and prisoners, while the victim is forgotten.

CUSTOMARY LAW versus AUTHORITARIAN LAW – CAN WE COMPARE THE OUTCOMES ?

Customary law did not make a distinction between civil and criminal offences. All offences were treated as torts (a civil action), and the offender could re-insert himself into society only by making amends to the victim, because it is the victim who has suffered the ‘wrong’. That is how the offender ‘rights the wrong’. The offender bears sole responsibility for repairing the damage he has caused. The logic of this system is compelling. Victims become incentivized to report offences, pursue prosecution, and receive their deserved restitution. This in turn serves as a disincentive for individuals to commit offences in the first place. “If I kill, rape or steal, I know for certain that a protection agency will be hot on my trail.” Thus, we should expect such a system to produce a lower crime rate, and a higher crime resolution rate, as compared to a system of authoritarian law. Logical as this assertion may be given the contrasting incentives in the two systems, the question remains “does the historical evidence support the assertion?”

The State is fanatical about collecting statistics, which provides us with sufficient data to make a comparison, at least from the perspective of authoritarian law. However, statistics appear to be unavailable from the Anglo-Saxon period. Either the records did not survive, or such record keeping was not deemed a priority. My guess is the latter, but we can consider other historical examples of customary law. Some of these examples will include statistics and some will not. Some may appear to closely resemble the Anglo-Saxon experience – no two societies are exactly the same – and some will lack the distinctive flavour of customary law. Those that fall into the latter category will nevertheless be worthy of our consideration, as these represent a noticeable departure from the authoritarian law to which we are accustomed. After consideration of these additional historical examples, we will consider the above assertion at the end of Part 7.

[2] Common law did not originate with various kings. Early common law consisted largely (perhaps entirely) of Anglo-Saxon customary law, which kings simply codified. see Benson Enterprise of Law p 21: Anglo-Saxon law prior to the Norman invasion had virtually all the characteristics of primitive legal systems. Evidence of the nature of early English law comes primarily from a few “codes” compiled by kings who rose to power during the late Anglo-Saxon period. In addition, a number of tracts or custumals were written after the Norman conquest in an effort to compile the customary law of the time, much of which was Anglo-Saxon in origin. Sir James Stephen concluded in 1883 that “the general impression which [one such compilation] makes is that [the Anglo-Saxons] had an abundance of customs and laws sufficiently well established for practical purposes.” Similarly, Sir Frederick Pollock and Frederick Maitland surmised that “written Anglo-Saxon laws . . . are mere super-structures on a much larger base of custom.” [sources provided by Benson: Sir Frederick Pollock and Frederick W. Maitland, The History of English Law, vol. 1 (Washington, D.C.: Lawyers’ Literary Club, 1959), pp. 10-27…..Sir James F. Stephen, A History of the Criminal Law of England, vol. 1 (1883; reprint, New York: Burt Franklin, 1963), p. 52…..Pollock and Maitland, The History of English Law, vol. 1, p. 27]